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Scottish planning legislation round-up

The implementation of the Planning Etc (Scotland) Act 2006 continues apace with December bringing a raft of further changes to the Scottish Planning framework. This month, we focus on the latest regulations (and draft regulations) covering development management.

The Town and Country Planning (Hierarchy of Developments) (Scotland) Regulations 2009 (Draft)

These draft regulations provide for the classification of, and thresholds for major developments. Major developments are subject to greater public consultation and scrutiny and appeals against refusal continue to lie to Scottish Ministers. Following a consultation last year with over 90 responses, the regulations are now expected to come into force on 6 April 2009. There have been a number of changes to the original 2007 draft regulations. Of note, housing developments need now only have 50 or more houses to be classed as major, whilst business premises need only have a gross floorspace of 10,000 sq m. Retail developments of more than 5,000 sq m now fall into the major category. Two new classes of major development have been added, namely fish farms and minerals.

The Town and Country Planning (Development Management Procedure) (Scotland) Regulations 2008

The regulations provide the background to planning applications, conditions and certificates of lawful use. A new pre-application consultation phase is required under the 2006 Act, and will be necessary for national and major developments. The regulations set out minimum standards for the consultation, with the prospective applicant to consult every community council whose area includes or adjoins the land. At least one public event must also be held, allowing members of the public to comment on the proposed development.

One of the most significant changes in procedure is neighbour notification. Whereas notification was previously carried out by developers, the planning authority must now carry out notification, not just for applications for planning permission, but also where an application is made for approval of a condition under planning permission in principle. Whilst this shift in responsibility could on the face of it seem less onerous for applicants, the development industry previously expressed grave concern about the consequences of the planning authority incorrectly neighbour notifying, but proceeding to grant permission. A further requirement will be pre-determination hearings in relation to national developments, or major developments that are significantly contrary to the local development plan. In this situation, individuals can be heard before a committee of the planning authority.

The provisions relating to pre-application consultation and electronic submission of documents will enter into force on 6 April 2009, with the remaining provisions entering into force from 3 August 2009. As with other Regulations, thought has been given to developments currently making their way through the planning process. Applications made prior to 3 August 2009 but which are not determined by that date will be subject to the pre-determination hearings provisions in the new regulations. Applications for approval of reserved matters under an outline planning permission that are made after 3 August 2009 will be treated as if they were applications for approval of a condition imposed under a planning permission in principle.

As trailed in the December update to the reform timetable the proposed restrictions on mezzanine development in the draft 2007 regulations are not being taken forward at present due to the current economic climate.

The Town and Country Planning (Schemes of Delegation and Local Review Procedure) (Scotland) Regulations 2008

Under the regulations, each Planning Authority is required to prepare a scheme by which applications (for planning permission and consent to a condition) are to be determined by an appointed officer. The scheme will require approval by the Scottish Ministers, and must be prepared in intervals of no more than five years.

The regulations also make provision for local review bodies (a committee made up of individuals from the planning authority, tasked with reviewing applications which are appealed or deemed appealed by virtue of not being determined within the deadline). Only if the local review body does not determine the case within a further two months can the applicant can take the appeal to the Scottish Ministers. Otherwise, further appeal against a decision of a local review body can be made to the Court of Session on points of law only.

Applicants should bear in mind that notice of the review should be given to the local review body within three months of the appointed officer's decision (or deemed refusal). The local review procedure is a procedure to be conducted in public, albeit that a local review body can now determine a review without further procedure where they consider that they have sufficient information in hand already (and thereby not allow parties the chance to submit further comment).

This remains a controversial aspect of the planning reforms as it raises significant questions regarding separation of roles and impartiality. It is interesting to note that similar proposals South of the Border are not now being taken forward and there is an expectation that this area may result in a number of Court challenges in the future.

The Town and Country Planning (Appeals) (Scotland) Regulations 2008

Finally, the appeals regulations provide further detail on appeals to the Scottish Ministers, and the procedure to be applied when applications are called-in.

One notable change is that notice of appeal must be given to the Scottish Ministers within three months of the date of the planning authority's decision (or deemed refusal). This is a significant change from the six months previously available to appellants. Whilst this should ensure that appeal decisions are ultimately reached sooner (reducing overall delay and uncertainty), it does reduce the time available to appellants to assess the potential benefit of an appeal. Appeals lodged prior to 3 August 2009 will continue to be dealt with under the existing rules. Any appeals lodged after that date will be dealt with under the procedures laid down in the new Regulations.

Mirroring the provisions applicable to local review bodies (see above), the appointed person in appeals to the Scottish Ministers can similarly decide to determine an appeal by further procedure, and not hear further evidence.

It is clear from the tone of the regulations that the Scottish Government is encouraging a shift from the more adversarial hearing system to written submissions and hearings, and indeed these are routes which are already favoured by a number of parties.

Elsewhere within the regulations, procedural changes may affect the preferred appeal route for appellants. Whilst inquiries will most likey continue to be the preferred choice for complex proposals, the regulations lay down a default word limit for precognitions of just 2,000 words (although this may be altered by the appointed person). Whilst no doubt aimed at encouraging parties to submit information earlier in the process, this provision does raise questions about the ability of parties to present a complete case to the Inquiry and may needlessly increase the scope for procedural debate at the Inquiry rather than allowing a focus on the issues themselves.